Posts Tagged ‘non-discrimation’

There are so many things wrong with Marci Hamilton’s Findlaw column about Christian Legal Society v. Martinez that it’s hard to know where to start. So I’ll start at the beginning and work my way through, hitting the most serious deficiencies in the column.

The column states that this case will cause the Supreme Court to “wade into the culture wars morass.” To be sure, this case arises out of a leftwing university’s attack on a theologically orthodox religious group. However, the legal principles involved transcend the particular positions taken by the contending sides on religious and moral questions. At stake is the freedom of all student groups to choose leaders who share their respective missions, free from undue government pressure. For decades, counter-cultural groups have invoked the First Amendment to protect themselves from hostile university administrators. In the past, groups on the Left resisted officials they perceived to be conservative. Now the roles are reversed. Just as the courts vindicated the Constitution in those cases, they should do so now as well. There is no need for the Court to “choose sides” in the culture war. It simply needs to uphold the Constitution.

Professor Hamilton declares that “no one who engages in sex that occurs outside of marriage between a man and a woman may be an officer or prayer leader.” This is simply incorrect. CLS stated as follows on pages 35-36 in its opening brief filed in the Supreme Court:

In accordance with traditional Christian teaching, the CLS chapter does not exclude all those who engage in what they regard as immoral conduct, sexual or otherwise: The CLS membership policy excludes only those who do so “unrepentantly,” which is religion-speak for those who do not regard the conduct as wrong or sinful and resolve to cease acting in that manner. Thus, far from excluding people on the basis of orientation, the CLS Statement of Faith excludes them on the basis of a conjunction of conduct and the belief that the conduct is not wrong.

Given that the remainder of Professor Hamilton’s column reveals that she read CLS’s opening brief, this misstatement of CLS’s position regarding human sexuality is surprising. Moreover, this approach to sexuality (i.e., differentiating among the experience of same-sex sexual attraction, the participation in same-sex sexual intimacy, and the persistent and unrepentant participation in such conduct) is not unique to CLS; many religious groups (and social scientists) do likewise. To suggest that groups like CLS embrace and impose more categorical “rules” is misleading, and in a way that does not put CLS in a good light. Nuances matter when it comes to people, and they matter when it comes to language and the law.

The very next sentence of Professor Hamilton’s column characterizes CLS’s policies this way: “In other words, homosexuals need not apply.” This is, at best, grossly misleading. Individuals who experience same-sex sexual attraction are eligible for membership and leadership in CLS. To the extent the word “homosexuals” is understood to include such persons, Professor Hamilton’s assertion that “homosexuals need not apply” is false. To the extent that the word “homosexuals” includes people who do not engage unrepentantly in extramarital sexual behavior, Professor Hamilton’s characterization of CLS’s policies is also false.

Next Professor Hamilton states that “[b]ecause CLS discriminates against homosexuals, the Law School refused to recognize it as an official student group.” This statement, ambiguous itself, ignores the other reason Hastings gave for denying CLS the valuable benefits of registered student organization status: the fact that it draws its leaders and voting members from among those who voluntarily sign its statement of faith, something Hastings deemed “religious discrimination.” This case is not only about the emotionally and culturally explosive conflict over human sexual behavior, but also about the freedom of religious groups to consider religious belief (e.g., whether the Bible is inspired, whether Jesus is divine) in choosing their leaders.

Professor Hamilton next argues that “this case hardly seems worth the candle.” I respectfully disagree. First, the column misstates the identity and value of the benefits Hastings confers on every group but CLS. It is undisputed that Hastings has denied CLS access to the customary means by which student organizations communicate with the student body, such as the annual Student Organizations Fair, the law school newsletter, bulletin boards, mailboxes, or weekly email announcements of activities. Although Hastings has offered to allow the CLS chapter to use meeting rooms as a matter of sufferance during the pendency of the litigation, Hastings has reserved the right to charge CLS a fee and to revoke the privilege of meeting at any time.

Professor Hamilton’s suggestion that these benefits are not valuable is hard to square with their existence and their widespread use by registered student organizations. If these benefits were not valuable, why would Hastings go to the trouble and expense of creating them and conferring them upon student groups? Why would student groups regularly use them to pursue their diverse missions? I’ve spoken at a number of law schools this semester, and the leaders of various student groups have unanimously confirmed the importance of the various benefits universities provide to their groups.

The denial of such benefits is constitutionally significant. Healy v. James, Widmar v. Vincent, Rosenberger v. Rector of the University of Virginia, and numerous lower court decisions unambiguously hold that the denial of such benefits is a constitutionally cognizable injury. The fact that CLS is not utterly without alternative (but undeniably less effective) means of pursuing its mission and communicating its message is both legally irrelevant and factually unpersuasive. It is hard to imagine that one would so easily dismiss the harm suffered by a group if a law school withheld benefits from the group on the basis of some reason deemed less defensible, e.g., because the group included primarily African-American students. The bottom line is that it is simply false to suggest, as Professor Hamilton does, that this case is about CLS’s desire for the Hastings “logo and imprimatur.”

Moreover, Professor Hamilton does not consider the additional way that the courts have assessed the burdens that governments impose upon religious organizations through the application of religion and “sexual orientation” nondiscrimination rules. In addition to examining the benefits denied, courts assess the effect of complying with the rule in question. In this case, there can be little doubt that forcing CLS to have an atheist lead its Bible studies would undermine its ability to formulate and communicate its preferred message. Similarly, CLS would not be able to effectively convey its message regarding sexual morality if it were unable to remove a hypothetical Mark Sanford, Tiger Woods, or Eliot Spitzer from a leadership post.

Next, Professor Hamilton asserts that “this case is simply one more in a growing number of disputes in which religious organizations treat government funds as if they were entitlements.” Religious groups, like all others, are “entitled” to the treatment that the Constitution mandates. And it is not wrong for religious groups to take action to vindicate their constitutionally protected rights. Professor Hamilton contends that such groups seek equal treatment “despite the Establishment Clause, the Constitution’s separation of church and state,” apparently suggesting that Hastings would violate that provision of the First Amendment by giving CLS access to its speech forum. But the Establishment Clause plainly does not require Hastings to withhold registered student organization status from CLS. The Court’s decisions in Widmar and Rosenberger settled that question.

Professor Hamilton believes that it is somehow inappropriate – even “irrational” – for religious groups like CLS to seek access to speech forums “from government entities that have staked out positions that are diametrically opposed to their core religious beliefs.” I don’t see why this is inappropriate. CLS wants to pursue its mission, and access to meeting space, funding, and communications mechanisms provided by the law school will help it do so. Its receipt of the benefits of recognition is entirely consistent with Hastings’ stated purpose of encouraging a robust debate on a virtually unlimited set of topics. CLS’s use of meeting space, funding, and communications mechanisms does not cause it to compromise its integrity in any way. In any event, it is one thing for a government entity to “stake out a position” with which a religious group disagrees; it is quite another for the government to use its power to pressure a religious group to conform its perspective to that of the government. That is precisely what Hastings is doing, and this goes to the core of the Free Speech Clause.

Professor Hamilton next contends that CLS’s argument that Hastings violated its Free Speech Clause rights “is a real stretch.” Again, I disagree. Professor Hamilton fails to address the significance of the Supreme Court’s decision in Boy Scouts of America v. Dale, in which the Court held that the First Amendment forbids the application of a “sexual orientation” non-discrimination law to an organization that considers homosexual conduct immoral. In my opinion, her attempts to distinguish Rumsfeld v. FAIR and Rosenberger are unpersuasive. In Rumsfeld, the law schools lost because military recruiters would not become “members” of the law schools, undermining their claim that hosting the recruiters would substantially undermine their ability to communicate their position in favor of homosexual activism. The Court indicated that if the government were conditioning the receipt of a benefit upon a group’s acceptance of members who oppose the group’s mission, the Constitution would be violated. Hastings will not recognize CLS unless it allows those who reject its religious commitments not only to become “members,” but also to become officers. Accordingly, the Rumsfeld decision supports CLS’s position.

Professor Hamilton gets one thing right: she observes that Hastings is “openly opposed” to CLS’s beliefs. To be sure, this observation is the starting point for her somewhat strange assertion that it is “irrational” for CLS to seek access to speech forum at a public law school that is committed to punishing CLS because of its disagreement with the prevailing orthodoxy. In any event, her observation about Hastings’ opposition to CLS’s beliefs gets to the heart of this case. It is not about Hastings preventing an invidious discriminator from denying protected minorities some valuable benefit. Instead, it is about Hastings attempting to use its considerable power to pressure a dissenting group to change its counter-cultural message. Under Professor Hamilton’s logic, it would be “rational” for theologically orthodox Christian students to simply withdraw from Hastings entirely on the ground that the school opposes their viewpoint. Is this really the result a public law school subject to the First Amendment should desire?

Professor Hamilton asks whether CLS, in order to be “fully satisfied,” needs the law school to entirely eliminate “sexual orientation” from its non-discrimination policy and wonders whether its civil rights action is just “stage one” in some larger “campaign” at the school. First, it bears noting that Hastings has declared that it forbids any group from invoking any reason to deny any student a membership or leadership position. CLS’s lawsuit challenges this severe interference with the right of every group to formulate and communicate its own message. Second, neither CLS national nor any student chapter has mounted any sort of larger “campaign.” On numerous campuses, CLS chapters were able to persuade administrators to respect their religious freedom. Once that happened, they did not take any additional actions regarding non-discrimination policies. They simply went about the business of pursuing their mission. Simply put, CLS does not object to law schools’ recognition of Outlaw or any other group for that matter, but Outlaw objects to CLS.

Professor Hamilton claims that CLS “misstated the Law School’s policy: That policy states that no organization is permitted to put its – or its members’ – discriminatory beliefs into action.” I am afraid that it is Professor Hamilton who misunderstands the law school’s policy – and the nature of CLS’s argument. At the outset, it is worth noting that Hastings recognized a religious student group with a statement of faith requirement prior to 2003 as well as a group (La Raza) whose by-laws mandated race and/or national origin discrimination in 2004. When Hastings withheld recognition from CLS in 2004, it invoked the religion and “sexual orientation” provisions of its written non-discrimination policy. CLS correctly observed that Hastings allowed other groups to organize around secular ideas – to exclude individuals who rejected their core principles. For example, it observed that the Hastings Democratic Caucus reserved the right to deny leadership positions to individuals who opposed Democratic Party principles. CLS correctly argued that this constituted discrimination on the basis of viewpoint – something presumptively unconstitutional. In an apparent acknowledgement of the power of this claim, Hastings subsequently claimed that no groupcould exclude any person for any reason. Of course, this shift simply magnified the scope and depth of Hastings’ violation of the right of expressive association.

Professor Hamilton asserts that CLS’s argument “rests heavily on the assumption that no Republican would ever want to join a Democratic student group, and vice-versa, on the apparent assumption that those organizations must always be politically pure.” This assertion reflects a serious misunderstanding of CLS’s argument. As noted above, CLS argued that it was viewpoint discriminatory for Hastings to allow political groups the freedom to deny leadership to individuals who rejected the group’s political views while denying religious groups the freedom to deny leadership to individuals who rejected the group’s religious views. The power of that argument does not rest upon any assertion that a Republican would never want to join a Democratic club, or on the assertion that there would never be a circumstance in which a Democratic club might choose to allow a registered Republican to serve as a leader or member. The argument instead rests upon the undeniable observation that Hastings acknowledged the freedom of political groups while denying the freedom of religious groups.

Professor Hamilton concludes her column by arguing that CLS’s pursuit of equal treatment contradicts what she characterizes as the traditional “Republican Party” view that religious organizations should not accept government benefits. CLS is not the Republican Party and is not a Republican group. As such, it is unconcerned with whether its effort to vindicate its constitutional rights is consistent with what Professor Hamilton characterizes as Republican Party principles. Second, I acknowledge that one could argue whether a public university should extract activities fees from its students in order to support student groups. However, even if one opposes such a system, it is not inconsistent to argue that if such a system exists, it should be administered fairly. At Hastings, it has not been administered fairly, and that is what CLS has challenged.

Note: This column was submitted to FindLaw Writ, but it did not agree to publish it.

Does a desire to preserve the expressive message of a Christian student group conflict with Christ’s call for us to “make disciples of all nations”? That is the basic question posed by a comment to Greg’s “First CLS, Then the Klan?” post:

As a Christian law student I wonder how we are suppose to reach other people if we keep them out of our groups? Did Jesus speak only to Jews? I don’t know how I am suppose to live like Jesus if I am to seperate [sic] myself from anything that doesn’t believe. Just like Jesus spoke to the Samaritan women and the “sinners” we need to create a space for people of different beliefs to feel comfortable and learn about Jesus without feeling ostracized. Why would we want a club where only chritians [sic] can meet? We should remember that Jesus came for the sick not the healthy.

I agree with the premise of this comment, which is that Jesus came to seek and save the lost. (Luke 19:10.) Jesus’ message is one of hope and grace, of showing people that they need to stop running from God and start running toward Him. Christ’s message was not just for Jews, but also for Gentiles. But Jesus’ purpose—or message of salvation—does not conflict with His commandment to take this message to “all nations.”

The lack of conflict is evident in who Christ selected to spread His message. He did not select unrepentant sinners or even those who thought of themselves as the most righteous under the Law. Rather, Christ selected apostles who believed in Him and his message of salvation. Those who were unwilling to repent were not the leaders of the early Church. What happened when some early members of the Church argued that in order to be a true Christian, you had to continue to uphold the old Law? Paul opposed them and said that they were not preaching the “truth of the gospel.” (Galatians 2:14.) Paul and the other apostles maintained the message of Christ by ensuring that false brothers did not infiltrate their ranks. This occurs throughout the New Testament. One of the consistent warnings for the early Church from Paul and the other apostles was not to be misled by false teachers. (See, e.g., Acts 20:28-31; 2 Corinthians 11:1-15; 1 Timothy 1; Titus 1:10-16; 2 Peter 2; 2 John; and Jude.)

In the same way today, many churches do not allow unbelieving people to serve as pastors, leaders or even members. How could a Christian church remain faithful to Christ’s message if it were led by a non-Christian or one who claimed to be a Christian but adhered to false doctrine? It would not; its Christian message would evaporate. In fact, to carry out Christ’s message that we take the gospel to “all nations” our churches must remain faithful to Christ’s message of salvation. For example, if a non-Christian were allowed to lead a church and preached that salvation comes through obedience to the law, then the church would not be preaching the “truth of the gospel,” which is salvation by faith alone.

This is true especially for a church or parachurch organizations and ministries, but is also true for other kinds of groups. For example, should an avid hunter be allowed to lead an animal rights group? And if the hunter was allowed, what would happen to the group’s message? It is for this reason that our nation recognizes the importance of enabling groups of citizens to come together to express a particular message and the ability of those groups to ensure the integrity of their message by choosing members and leaders who believe in it. We absolutely need to create a space for people to feel welcome in our churches and in our Christian groups, but that does not conflict with the desire of these groups to preserve their message. The Christian Legal Society case is not about excluding non-Christians from participating in the group, it is about preserving the message of the group. Indeed, the facts show that CLS welcomes all students to participate. Thus, the constitutional right of freely associating with like-minded people who believe in the group’s message is not in conflict with Jesus’ message of taking the hope of the gospel to all nations. Indeed, it assures our ability to do so.

Prof. Hamilton asserted that the “bottom line question” in this case is as follows: if the Court orders Hastings to recognize CLS, will public law schools be required to recognize the Ku Klux Klan?

Although it is not difficult to imagine that a Justice might ask such a question during oral argument, I find it hard to agree that this question is the “bottom line” in the case. The bottom line is whether Hastings violated the Constitution by pressuring a religious group to subordinate its religious character.

During the “equal access” debates in the 1980s, opponents argued that requiring public schools to give student Bible clubs access to meeting space would lead to the proliferation of Nazi, skinhead, and Klan groups on campus. Over 25 years after the adoption of the federal Equal Access Act, we can safely say that these fears were utterly unfounded. The notion that groups of racist law students are poised to seek official recognition from America’s public law schools, just waiting for the Supreme Court to rule in CLS’s favor, is frankly preposterous.

More fundamentally, there is an enormous distinction between an entity engaging in invidious race discrimination and religious organization requiring its leaders and members to share its religious views. A synagogue that requires its rabbi to be Jewish is not like the Klan. A mosque that requires its imam to be Muslim is not like the Klan. And a CLS chapter that requires its Bible study leaders to be a Christian is not like the Klan. Sometimes, unfortunately, it is necessary to say what ought to be self-evident.

Observers of the United States Supreme Court are noting the unusually-long scrutiny the justices are giving to Christian Legal Society v. Martinez, the case where the University of California-Hastings (in San Francisco) denied permission to the Christian Legal Society to meet on campus because it ran afoul of its nondiscrimination policy, as ADF has seen on other university campuses. Specifically, CLS requires its leadership to agree with the Christian group’s statement of faith in Christ and to obey the Bible’s teachings to abstain from sexual relations outside of marriage, defined as one man and one woman. UC-Hastings claims CLS engages in “religious discrimination” because atheists and Buddhists cannot become leaders of the Christian Legal Society. Of course, environmentalist groups or other ideological student groups are free to require that potential officers or members agree with the viewpoints they advocate in order to join. UC-Hastings also views CLS’s views on sexual purity before marriage as “sexual orientation” discrimination.

The Christian Legal Society sued, claiming that UC-Hastings was violating its First Amendment right to expressive association. The federal district court ruled against CLS. The U.S. Court of Appeals for the Ninth Circuit also earlier this year ruled against the Christian Legal Society, in a decision shorter than a haiku. The decision, in its entirety, states:

The parties stipulate that Hastings imposes an open membership rule on all student groups—all groups must accept all comers as voting members even if those individuals disagree with the mission of the group. The conditions on recognition are therefore viewpoint neutral and reasonable. Truth v. Kent Sch. Dist., 542 F.3d 634, 649–50 (9th Cir. 2008).

So CLS appealed to the U.S. Supreme Court. The respected SCOTUSblog highlighted this case as an important one to watch at the Supreme Court. According to the schedule, everyone expected the Supreme Court to decide whether to take the case by late September. But no one imagined that by mid-November we would still be waiting for the Supreme Court to act. Normally, when a case is appealed to the Supreme Court, it is set for conference (a meeting of the nine justices). A few days later, the Supreme Court issues an orders list from that conference, stating whether the high court will agree to hear the cases considered at that conference or not.

However, the Supreme Court has now delayed deciding what to do with the case for six conferences. This is so unusual that it has caught the eye of veteran Supreme Court observer Tony Mauro who wondered Thursday in his law.com blog about what is going on with the case.

The Supreme Court has now set the case for its sixth conference for Friday, November 13, after calling for the U.S. Court of Appeals for the Ninth Circuit to send up the record in the case. Calling for the record is also an odd and unusual step for the justices to take. What is going on here? Are the justices agonizing over some issue or fact? Are they struggling to reach a consensus on what to do with the case?

For what it’s worth, here is my speculation. We know for sure that at least one or more justice is interested in the case because it takes a conscious, affirmative act by the justices to pull a case off the orders list, especially when it happens six times in a row.

Possibly, the justices want to examine the record to see what exactly is UC-Hastings’ policy. UC-Hastings has shifted between two positions on what its policy is. At times in the litigation, the University has claimed that it singled out CLS for exclusion from campus becasue CLS was “guilty” of religious and “sexual orientation” discrimination by the way it limits its membership to conform with its beliefs. At other times, UC-Hastings has stated (as the Ninth Circuit’s decision reflects) that its policy was to require all student organizations to accept any students as members. So the vegetarian club would have to accept deer hunters and steak lovers as members, the Socialist club would have to accept free market libertarians as members, etc.

The latter policy (all groups must accept any student as a member) is massively overbroad and shockingly unconstitutional. The University cannot possibly justify a policy that prohibits all students from forming any group limited to like-minded individuals. If the Supreme Court accepts the case for review and addresses that policy, we might have a 9–0 reversal of the Ninth Circuit. But is that the policy UC-Hastings has or not? Maybe that is why the high court has called for the record from the lower courts.

ADF has other cases in the pipeline that the Supreme Court could take to address the more limited question of how the nondiscrimination policy banning religious and “sexual orientation” discrimination apply to private student groups meeting on a public university campus. The Supreme Court does not necessarily need to address that question in the UC-Hastings case.

So, what will happen? Will the Supreme Court grant review and hear oral arguments? Will it summarily reverse and reject the horribly unconstitutional policy of UC-Hastings requiring all student groups to accept any student? Will it simply deny review after examining the case for weeks? And when will that happen? We simply don’t know, so the speculation mounts. Maybe we will get some clarity from the Supreme Court on Monday, but who knows? Stay tuned.